Canadian Aboriginal law

The Canadian Crown and Indigenous peoples began interactions during the European colonization period. Many agreements signed before the Confederation of Canada are recognized in Canadian law, such as the Peace and Friendship Treaties, the Robinson Treaties, the Douglas Treaties, and many others. After Canada's acquisition of Rupert's Land and the North-Western Territory in 1870, the eleven Numbered treaties were signed between First Nations and the Crown from 1871 to 1921. These treaties are agreements with the Crown administered by Canadian Aboriginal law and overseen by the Minister of Crown–Indigenous Relations.[17]

In 1973, Canada re-started signing new treaties and agreements with Indigenous peoples to address their land claims. The first modern treaty implemented under the new framework was the James Bay and Northern Quebec Agreement in 1970. The Nunavut Land Claims Agreement of 1993 lead to the creation of the Inuit-majority territory of Nunavut later that decade. The Canadian Crown continues to sign new treaties with Indigenous peoples, notably though the British Columbia Treaty Process.[18]

According to the First Nations–Federal Crown Political Accord, "cooperation will be a cornerstone for partnership between Canada and First Nations, wherein Canada is the short-form reference to Her Majesty the Queen in Right of Canada.[19] The Supreme Court of Canada argued that treaties "served to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights."[19] First Nations interpreted agreements covered in treaty 8 to last "as long as the sun shines, grass grows and rivers flow."[20] However, the Canadian government has frequently breached the Crown's treaty obligations over the years, and tries to address these issues by negotiating specific land claim.[21]

The Indian Act (Loi sur les Indiens, long name An Act to amend and consolidate the laws respecting Indians)[22] is a Canadian act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves.[23][24] First passed in 1876 and still in force with amendments, it is the primary document that defines how the Government of Canada interacts with the 614 First Nation bands in Canada and their members. Throughout its long history, the act has been a subject of controversy and has been interpreted in different ways by both Indigenous Canadians and non-Indigenous Canadians. The legislation has been amended many times, including "over five major changes" made in 2002.[25]

The act is very wide-ranging in scope, covering governance, land use, healthcare, education, and more on Indian reserves. Notably, the original Indian Act defines two elements that affect all Indigenous Canadians:

The act was passed because the state ("Crown") relates differently to First Nations (historically called "Indians") than to other ethnic groups because of their previous history on the land. When Canada confederated in 1867 the new state inherited legal responsibilities from the colonial periods under France and Great Britain, most notably the Royal Proclamation of 1763 which made it illegal for British subjects to buy land directly from Indian nations, because only the Crown could add land to the British Empire from other sovereign nations through treaties. This led to early treaties between Britain and nations the British still recognized as sovereign, like the "Peace and Friendship Treaties" with the Mi'kmaq and the Upper Canada treaties. During the negotiations around Canadian Confederation, the framers of Canada's constitution wanted the new federal government to inherit Britain's former role in treaty-making and land acquisition, and specifically assigned responsibility for "Indians and lands reserved for Indians" to the federal government (rather than the provinces), by the terms of Section 91(24) of the Constitution Act, 1867. The Indian Act replaced any laws on the topic passed by a local legislature before a province joined Canadian Confederation, creating a definitive national policy.

The act is not a treaty; it is Canada's legal response to the treaties. The act's unilateral nature was imposed on Indigenous peoples after passage by the Canadian government, in contrast to the treaties, which were negotiated. This aspect was resented and resisted by many Indigenous peoples in Canada. However, as the governor general mentioned when the act was passed on April 12, 1876, many of its provisions were suggested by the Indian Councils of the older provinces.[26] Dr. Jones, the Chief of the Mississauga Indians, reported that the measures were generally very highly approved by the Indians, especially those clauses and arrangements relating to the election of chiefs and the gradual enfranchisement of members of the tribes.[27]

In Canada, aboriginal title is considered a sui generis interest in land. Aboriginal title has been described this way in order to distinguish it from other proprietary interests, but also due to the fact its characteristics cannot be explained by reference either to only the common law rules of real property, or to only the rules of property found in Indigenous legal systems.[28][29][30][31] The Supreme Court of Canada has characterised the idea that aboriginal title is sui generis as the unifying principle underlying the various dimensions of that title.[29][32] Aboriginal title is properly construed as neither a real right nor a personal right, despite the fact that it appears to share characteristics of both real and personal rights.[33] Aboriginal title refers to the concept of a sui generis right in land that originates from the exclusive occupation and use of a specific territory by an aboriginal group over which the group has a native historic attachment.[33][34]